Justices Chelameswar and Gogoi noted that Karnan’s conduct was controversial ever since his elevation to the bench, and attributed this to the “failure to make an assessment of his personality at the time of recommending his name for elevation”.

The May 9 order of the seven judges discussed in detail the letters written by Karnan, his statements to the press as well as his conduct in response to the notice issued by the apex court. (Source: File Photo)

THE JUSTICE C S Karnan episode points to a “systemic failure” in the selection and appointment of judges, and highlights the need to revisit the process and put in place a legal mechanism other than impeachment to deal with such judges, two judges of the seven-judge Supreme Court Constitution bench which convicted and sentenced the former Kolkata High Court judge have said.

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“This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things: the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter, any member of the judiciary at all levels; and the need to set up appropriate legal regime to deal with situations where the conduct of a judge of a constitutional court requires corrective measures — other than impeachment — to be taken,” Justices J Chelameswar and Ranjan Gogoi said in their order dated July 4.

The two judges gave their separate order yesterday, while concurring with the findings of the other five judges — Chief Justice of India J S Khehar and Justices Dipak Misra, Madan B Lokur, Pinaki Chandra Ghose and Kurian Joseph — in the main order convicting and sentencing Karnan on May 9 this year. Both the orders were made public on Wednesday. Justice Ghose retired on May 27.

Justices Chelameswar and Gogoi noted that Karnan’s conduct was controversial ever since his elevation to the bench, and attributed this to the “failure to make an assessment of his personality at the time of recommending his name for elevation”. The purpose in saying so was not to point fingers at those responsible for the recommendation, “but only to highlight the system’s failure of not providing an appropriate procedure for making such an assessment”, they said.

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“What appropriate mechanism would be suitable for assessing the personality of the candidate who is being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate debate by all the concerned — the bar, the bench, the state and civil society. But the need appears to be unquestionable,” they said. “We are only sad to point out that apart from the embarrassment that this entire episode has caused to the Indian judiciary, there are various other instances (mercifully which are less known to the public) of conduct of some of the members of the judiciary which certainly would cause some embarrassment to the system,” they said.

“There can be deviations in the conduct of the holders of the offices of constitutional courts which do not strictly call for impeachment of the individual or such impeachment is not feasible. Surely, there must be other ways of dealing with such cases. The text of the Constitution is silent in this regard. Maybe it is time for the nation to debate this issue,” said the judges. Both the judges are part of the Supreme Court collegium. Justice Chelameswar has been a vocal critic of the collegium system and had dissented with the October 2016 majority judgement of the Supreme Court, scrapping the National Judicial Appointments Commission sought to be put in place by the Narendra Modi government.

Referring to the allegations levelled by Karnan against judges of the Madras High Court, they said the correct way “was to approach the appropriate forum competent to examine those allegations. What is the appropriate forum and procedure which the contemnor is required to follow for setting the law in motion with regard to each of the allegations made by the contemnor are questions to be examined in detail.” Karnan, however, had acted as both the complainant and judge and “crossed even the most liberal standards of expected and permissible expression of opinion,” they said.

The May 9 order of the seven judges discussed in detail the letters written by Karnan, his statements to the press as well as his conduct in response to the notice issued by the apex court. The court said it did not intend to stop a public debate on the Karnan episode when it restrained the media from carrying his statements after holding him guilty of contempt on May 9. The “restraint order…does not prevent or hinder any public debate on the matter, academic or otherwise. We have not restricted the media in any manner, other than, to the limited extent expressed above. We hope and expect, that a meaningful debate, would lead to a wholesome understanding of the issue, from all possible perspectives,” it said.